It is almost anticlimactic after a month of speculation following a leaked draft opinion, but the activist radical Republican U.S. Supreme Court today reversed Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization.
As the dissenters write, “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
Women of child-bearing age are now relegated to second-class citizens, your uterus is the property of the state, and state legislators can force you to give birth against your will. This is your new reality today.
For the first time in American history, the U.S. Supreme Court has reversed a fundamental constitutional right it found grounded in the Constitution almost 50 years ago. This should terrify everyone. No one’s fundamental constitutional rights are now secure with this activist radical Republican court.
Justice Clarence Thomas in his separate opinion made this abundantly clear: he would do away with the entire doctrine of “substantive due process” and overrule Griswold (contraception), Lawrence (same-sex relations) and Obergefell (same-sex marriage) as soon as possible. See pp. 118-119. This is an open invitation to radical Republican legal organizations to bring these cases before the Court so that these fundamental constitutional rights recognized by the Court can now also be reversed.
The Supreme Court’s substantive due process doctrine has found that “personal autonomy, bodily integrity, self-dignity, and self-determination” are protected by the Due Process Clause. Together, these interests are invoked to justify a constitutionally protected right to privacy (the “penumbra of rights” derived, by implication, from other rights explicitly protected in the Bill of Rights).
Other rights that the Supreme Court has ruled are protected by the substantive due process right to privacy include, for example:
- The right for parents to raise their children as they see fit (Pierce v. Society of the Sisters),
- The right for extended family members to share a home (Moore v. City of East Cleveland),
- The right for competent adults to refuse life-saving medical procedures (Cruzan v. Missouri Department of Health)
- The right to interacial marriage (Loving v. Virginia) – you notice that Justice Thomas did not include this decision.
Note: This same activist radical Republican Supreme Court earlier this year recognized the right of anti-maskers and anti-vaxxers to not comply with public health safety regulations during a global pandemic based upon their “personal autonomy, bodily integrity,and self-determination.” COVID-19 Vaccine Mandates At The Supreme Court: Scope And Limits Of Federal Authority.
This radical Republican Supreme Court is hyper-politicized, and serves only the interests of the Republican Party. It is a wholly owned subsidiary. This activist radical Republican Supreme Court is now as great a threat to the survival of our Republic as the Sedition Party insurrectionists and their domestic terrorist militia groups. It’s time to “unpack” this radical Republican Supreme Court by adding more justices to the Court to dilute their influence. There Is Only One Way Out of This Crisis: Expand the Court.
That’s my quick two cents.
‘It’s precedent’: how supreme court justices spoke about Roe v Wade in the past
Supreme Court reporter Mark Joseph Stern writes at Slate, The Supreme Court Overrules Roe v. Wade:
The Supreme Court overturned Roe v. Wade on Friday, abolishing a constitutional right to abortion that has existed for nearly half a century. Its 6–3 decision in Dobbs v. Jackson Women’s Health Organization—which overrules Roe by a 5–4 vote—paves the way for total or near-total abortion bans in half the states. Justice Samuel Alito’s opinion for the court, joined by four other Republican-appointed justices, largely tracks the leaked draft. The bottom line remains the same: the eradication of federal protections for reproductive freedom. The result will be catastrophic for millions of people who will now be forced by the government to give birth against their will. And it will usher in a new era of surveillance [and Texas-style vigilantes], prosecution, and incarceration for those suspected of facilitating unlawful abortions—including their own.
Dobbs reads more like a polemic against abortion than a piece of legal analysis. Alito expressed disgust for abortion at every turn and evinces a snide hostility toward both patients and providers. He begins and ends with the assertion that reproductive freedom cannot possibly be guaranteed by the Constitution because it is not spelled out in so many words. Roe, he declared, was an “abuse of judicial authority” that “was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Of course, Roe found that the right to bodily autonomy is a component of personal “liberty,” which is expressly protected under the Fifth and 14th amendments [Substantive Due Process]. But Alito rejected this theory on the grounds that the ability to terminate a pregnancy is not “deeply rooted” in the nation’s “history and tradition.” To bolster his conclusion, he presented historical writings (by men) condemning abortion as a monstrous and illegal act. The vast majority of his evidence was written during a time when women had virtually no rights at all, including the right to vote, hold office, practice law, own property, or not be raped by their husbands.
Chief Justice John Roberts wrote a partial concurrence in the judgment, as expected, advocating for the court to uphold Mississippi’s 15-week ban—the law at issue in Dobbs—without formally overruling Roe. “I would take a more measured course,” the chief justice wrote, recognizing a right to abortion that extends “far enough to ensure a reasonable opportunity to choose” but no further. The liberal justices wrote a joint dissent [rare] highlighting the fact that the decision was made possible solely by the addition of Justices Brett Kavanaugh and Amy Coney Barrett to the bench. “A new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey,” they wrote, continuing:
It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans. … It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.
Republicans have spent decades preparing for this day, and their work will now come to fruition. Thirteen states have “trigger bans” that outlaw almost all abortions; they are designed to take effect once Roe falls, and will be enforced very soon. Four more states have pre-Roe bans on the books that will take effect in the near future. (Another, Michigan, has such a ban, but it has been blocked in state court.) Four other states have six-week bans that are now, for the first time, enforceable. It is worth noting that Texas and Oklahoma already functionally prohibited most abortions by passing vigilante bans that outsourced enforcement to private citizens [modeled on the Fugitive Slave Acts.]
Although Alito suggests that his decision will simply revert the nation back to its pre-Roe status quo, that is a fantasy. Red-state prosecutors have already begun investigating and punishing women who miscarry, a tactic that will increase exponentially now that every miscarriage is evidence of a potential crime. Similarly, doctors and pharmacists have started turning away miscarriage patients for fear of lawsuits and prosecution. The treatment for a miscarriage is often identical to the treatment for abortion. It is thus inevitable that women whose pregnancies end on their own will be caught up in the emerging dragnet.
Then there are the countless women who will obtain abortion pills illegally to terminate their own pregnancies. Anti-abortion advocates have long claimed that they wish to punish only the provider, not the patient—but increasingly, Americans manage their own abortions with medication privately, at home. Women have already been arrested and imprisoned for inducing abortions with pills purchased online. The truth is that these medications are extremely easy to obtain and safe to use; red states cannot realistically prevent their residents from acquiring them. Even when abortion bans purport to exclude patients from penalties, individuals who buy these pills illegally may be subject to a wide array of other criminal penalties.
Right now, citizens of red states who have enough money and resources can still travel across state lines to access reproductive health care. But Republican legislators are already crafting laws to prohibit women from traveling out of state to terminate a pregnancy [again modeled on the Fugitive Slave Acts.] They are considering new measures that would seek to shut down clinics in blue states by subjecting providers and patients to severe civil and criminal penalties. Although Alito believes that the Supreme Court has now washed its hands clean of the abortion issue, the next phase of restrictions will raise a slew of thorny constitutional questions for the justices to suss out.
There is a strong correlation between states with restriction abortion laws and states with high rates of maternal and infant mortality. The end of Roe will result in the deaths of many more women, with women of color at disproportionate risk of complications and death from childbirth. It will also increase the rate of child poverty in regions without abortion access. Red states have failed to enact any meaningful policies to address these problems. By criminalizing abortion without bothering to help those forced to carry unwanted pregnancies, they have forced millions of low-income women—and their children—deeper into poverty.
Dobbs purports to protect “life.” In reality, it will only lead to more suffering and death.
What happens next here in Arizona is unclear and in dispute. The Arizona Republic editorializes, Arizona needs clear answers about abortion now that Roe v. Wade is overturned (excerpt):
Roe v. Wade set an expectation. Most support it
Doctors and nurses who worked the pre-Roe hospital emergency wards remember the agony of young women suffering from life-threatening lacerations, puncture wounds and infections from underground abortions.
Americans will never tolerate that again.
Nor will they tolerate for long young women or their doctors heading to prison because they ended a pregnancy. Roe v. Wade may be overturned, but its 50 years as law cemented in the American psyche a determination to never go back to barbaric days of old. [The reliance interest of stare decisis.]
Some Arizona politicians will be tempted to challenge that ethos and will reap the whirlwind, creating new movements for reproductive choice that will assert their demands at the ballot box.
If they haven’t learned yet, they will soon know that Americans overwhelmingly support these rights.
In March, 61% of Americans said “abortion should be legal under all or most circumstances,” according to the Pew Research Center. Only 37% said it should be “illegal in all or most circumstances.”
Will Arizona revert to territorial law?
Legal experts and religious conservatives are still debating which Arizona law will determine reproductive choice in the state now that Roe v. Wade has been overturned.
Will it be a territorial era law that dictates two to five years of prison for anyone who performs or helps perform an abortion?
Or will it revert back to a new law passed in April that bans most abortions after 15 weeks of pregnancy and makes no exception for rape or incest?
The new law, as reported by The Arizona Republic’s Ray Stern, makes “knowingly performing an abortion after 15 weeks a low-level felony for licensed physicians, with an exception for a ‘medical emergency.’ The law grants immunity to women, protecting them from prosecution ‘for conspiracy to commit any violation of this article’.”
Our leaders must provide clarity now
Roe v. Wade is gone. Its absence will create enormous uncertainty in Arizona.
Arizona Gov. Doug Ducey and the Arizona Legislature have a duty to act quickly and provide clarity. If not, we are facing a political earthquake.
Note: The legislature is going sine die today, so they are done.
At the very least, our leaders should quickly freeze in place the rights that Roe guaranteed until the Legislature or the voters through ballot initiative decide what will be the future of reproductive rights moving forward.
A ballot initiative likely would not occur until 2024. It is too late in the process to qualify a ballot initiative by the July deadline in 2022.
Elections have consequences. Vote every one of these White Christian Nationalist Republicans out of office for their unrelenting assault on American democracy and their desire to impose a theocratic White Christian Nationalist autocracy on America, i.e., a permanent GQP tyranny of the minority.
This radical fringe will be met with massive resistance from patriotic Americans who believe in democracy, and the Constitution, and the rule of law, and a pluralistic “melting pot” of American citizens. This is not Rhodesia or South Africa of the late 20th Century. This GQP tyranny of the minority is destined to fall faster than the Third Reich.